1414795 (Refugee)

[2015] AATA 3327

1414795 (Refugee) [2015] AATA 3327 (11 August 2015)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414795

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Susan Pinto

DATE:11 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 11 August 2015 at 6:06pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicants are citizens of Pakistan. They are a husband and wife and their [number of] children. The first named applicant (the applicant) is aged in his mid 30s and the second named applicant is aged in her late 20s. Their children are aged between [age] and [age] years. The applicants are from Karachi in Sindh Province. The applicants lodged applications for [temporary] visas in Pakistan [in] June 2013. The visas were granted [in] October 2013 and the applicants arrived in Australia on those visas [in] November 2013. 

2. The applicants applied to the Department of Immigration for Protection visas [in] November 2013. The applicant essentially claimed that he operated a successful business in Karachi and as a result he was the subject of extortion and robberies; his son was kidnapped on one occasion; and there were attempted kidnappings of his sons. He also claims that his car was shot at on two occasions.  At the Department interview, the applicant also claimed that his uncle was killed by the Muttahida Qaumai Movement (MQM).

3. The delegate of the Minister for Immigration refused to grant the Protection visas [in] August 2014. The delegate accepted that the applicant had experienced extortion demands, his car was shot at, his uncle killed and his son kidnapped, but did not accept the robberies or that his uncle was killed by the MQM. The delegate also did not accept that the applicant’s claims were Convention related. Although the delegate accepted that there was a real risk that the applicant would suffer significant harm as a result of the operation of a successful retail cash business, the delegate considered that he and his family could relocate to another part of Pakistan where they could reside safely. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

4. A summary of the relevant law is set out in an attachment to this decision. The issues in this review are whether the applicants have a well founded fear of persecution in Pakistan for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm. The Tribunal must consider, therefore, whether the applicants have a well founded fear of persecution. If the Tribunal is not satisfied that the applicants have a well founded fear of persecution, the Tribunal must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia that there is a real risk that they will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

5. In a handwritten statement, the applicant states that he has lived in Karachi since he was born. The applicant states that he was a businessman in Karachi selling [specific] items. He owned two shops. Since the last four years it has become very hard to maintain his business because of the unstable political condition, bad social and economic situation and increasing number of robberies at his shops and homes and telephone calls asking for extortion money. The applicant regularly reported the incidents to the police and law enforcement authorities. The authorities are well aware of these incidents but they are influenced by corrupt politicians. The applicant states that there were kidnapping attempts on his children by unidentified persons. His eldest son was kidnapped and he paid a huge amount to have his son returned. The applicant reported the matter to the police and agencies and they began an investigation, but no action was taken by the corrupt administration and the government authorities. [In] May 2013, he was driving his car from his home towards his shop when suddenly some people with arms began firing on his car. However, due to the heavy traffic they could not target him. He managed to escape and the police arrived and he lodged a report, but no action was taken. Every day the applicant received threatening telephone calls at his home. The applicant states that “a few weeks later” an attempt was made to abduct his children, but the children were not correctly identified. This was reported to the authorities, but no action was taken against them.

6. [In] August 2013, four “robber” with arms entered his home and they beat him and his family. They beat them and tortured them and tightened each of his family member’s hands with rope and locked them in one room of the house. They ransacked his house and looted the jewellery and the cash from his home. They disconnected the telephone in his home and took their mobile telephones. The applicant and his family were injured in this home invasion. Again, there was no arrest or support of anybody by the authorities.

7. The applicant states that he has a very popular business and many times he was asked for money for the safety of his life and his family’s life, but he refused and after that there were life threatening incidents which happened one after another. He states that he is a well known and wealthy businessman in Pakistan and he has “lots of public dealing” and he is known to them, but it is very hard for him to identify who is an illegal informer and who is a genuine customer. The applicant and his family are well known to the authorities and if anything happens again there will be no support. He believes that if he returns to Pakistan he and his family will definitely be killed. The applicant cannot “reset” their lives in another part of the country and he will be discriminated against on the basis of his language, race, religion and anti-tribal basis. The applicant believes that due to the previous history of attacks, kidnapping and life threatening incidents that he and his family will be easily identified by their informer/illegal network and he will be in danger and they will try to kill him and his family. He states that the “biggest and main fear” is the corrupt and politically influenced law enforcement agencies and the biased administration of the country. He states that if he returns to Pakistan the authorities/agencies will arrest him and prosecute him and their family for no reason. He states that the authorities are unfair and there is in adequate protection for people such as him.

8. The applicant refers to the unstable political condition in every state of Pakistan and bomb blasts and targeted killings. He states that Pakistan has a long history of unstable government and for the last two decades innocent people have been killed for no reason and there have been targeted kidnappings, robberies and extortion in places such as Karachi. The human rights record is poor and the government does not demonstrate a commitment to the safety of the people of this country. He states that Pakistan is not a safe place for the applicant and his family and it is not possible to educate and bring up his children freely and fearlessly. He states that his whole family’s future is uncertain on their return. He states that the application is of a “humanitarian nature” and it would be unjust to require the applicant and his family to return to Pakistan.

9. The applicants indicated on the application form that they had previously travelled to [several specific countries] in 2011. They gave no details of any other previous travel. They also indicated that they do not have the right to enter and reside in any other country.

10. The applicant was interviewed by the delegate [in] July 2014. During the Department interview, the applicant advised, when asked by the delegate for further details of his travel, that he had been to [Country 1] and [another country].  The applicants’ passports also contain visas for [Country 1], granted [in] July 2013, and valid for a five year period (see below).

11. Documents provided in support of the application included a CD Rom which provides a “re-enactment” of various kidnappings and crimes in Karachi. The CD Rom is in Urdu. The applicant also provided three affidavits in relation to properties he owns in Karachi, two in [Location 2] and one in [Location 3], valued respectively at 40 million rupees; ten million rupees; and forty million rupees. 

    Application for review

12. When lodging the application to the Tribunal, the applicant provided a copy of the delegate’s decision record.

13. A submission was received on 3 June 2015 in which the representative submitted that the applicant worked as a businessman and owned shops in Karachi. He has also provided evidence of ownership of three properties. It is submitted that over the past four years the applicants have been targeted for extortion, kidnapping and death threats due to their financial standing. The applicant’s shop has been targeted and robbed multiple times and he has been targeted in his home, received threatening telephone calls and been extorted and his young son kidnapped and returned only after he paid a large amount of money. It is submitted that the applicant is a member of a particular social group, namely wealthy businessmen in Karachi. It is submitted that the delegate failed to explore his membership of this particular social group and the applicant was previously unrepresented and did not understand the complexities of such an argument. The representative submits that such a group is cognisable and identifiable and their shared characteristic of wealthy, businessmen/shop owners sets them apart from Pakistani society at large.

14. The applicant also provided a document, dated [in] August 2013, titled “request for arrest/trace out the culprits who is trying to make my life blemish”. It states that he is running his own [product] business with the name and style of [business name], Karachi, situated at [Location 3]. He states that he appeals for sympathy as well to arrest unknown culprits who attempted to abduct/kidnap his [elder son] from the outside of his school. He states that they did not identify/recognise his son and he reached his home safe and sound. It is stated that his [son] has already been kidnapped by unknown kidnappers from the outside of his school at [location], Karachi and they kept his son for four hours and demanded a ransom of [a large amount of] rupees which he paid to them to protect his son. He states that subsequently unknown culprits have been threatening him and have telephone him regularly with threatening telephone calls. It is requested that serious action be taken against “unearthed culprits who are trying to grab my sumptuousness life”.

15. Additional documents provided to the Tribunal included a First information Report, dated [in] April 2015, stating that the date and time of the incident was [in] December 2014. It states that the informant is the manager of the shop owned by [Company name] in [Location 3]. It states that four persons came inside the shop and snatched cash of [an amount of] rupees and [several products listed]. The articles are insured on behalf of the company and the claim has been lodged for insurance purposes.

16. The applicants appeared before the Tribunal on 9 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicants were represented in relation to the review by their registered migration agent. The applicants were advised during the hearing that although the delegate accepted several of their claims that the Tribunal may reach a different conclusion and make different findings.

17. The representative was granted until 9 July 2015 to provide a submission to the Tribunal addressing some of the issues raised during the Tribunal hearing. A post hearing submission was received on 9 July 2015. The Tribunal’s consideration of the submission, the applicants’ oral evidence to the Department and the Tribunal, and the written claims and submissions are considered in detail below.

    ASSESSMENT OF CLAIMS AND EVIDENCE

    Do the applicants have a well founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention?

18. As stated above, the Tribunal must consider whether the applicants have a well founded fear of persecution in Pakistan for one or more of the five Convention reasons. In this matter, it has been claimed that the applicant is a member of a particular social group of wealthy businessmen/businessmen more generally or a similar connotation of particular social group.

19. Having considered all of the evidence, the Tribunal does not accept that the applicant has given a truthful account of his and his family’s experiences in Pakistan. In considering the applicant’s claims, the Tribunal has had regard to submissions made following the hearing in relation to the applicant’s “memory lapses.” The Tribunal has also had regard to the applicant’s claims, raised during the hearing, that his memory and ability to recall aspects of his claims during the Department interview was affected by Ramadan and the fact that he was fasting at that time. The Tribunal does not accept that the problematic nature of the evidence was due to “memory lapses” or Ramadan, and considers that during the hearing he was frequently evasive and showed a considerable tendency to alter and adapt his evidence in response to concerns raised by the Tribunal. The Tribunal does not accept that the applicant’s account of his experiences as given during the hearing was based on actual experiences. The Tribunal considers that his evidence indicated that he was instead attempting to recall a set of claims that had been fabricated for the purposes of the application.

20. As stated above, the applicant has claimed that he has suffered various incidents of harm inflicted against himself and his family due to his status as a member of a particular social group of wealthy businessman/businessmen. The Tribunal is prepared to accept that such a particular social group exists. However, the Tribunal is not satisfied on the evidence before it that the applicant has been harmed in the past as a result of his membership of this group or that there is a real chance he will suffer such harm in the future. The Tribunal considers that they have left Pakistan due to their desire to live and raise their children in the relative safety of Australia.  Although the Tribunal accepts that this is understandable, without more it does not establish that there is a real chance they will suffer serious harm in Pakistan. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

    The applicants’ visas for [Country 1]

21. The Tribunal has firstly considered the issue of the visas held by the applicants for [Country 1] which were issued [in] July 2013 and valid until [July] 2018. The duration of each stay is for 180 days. When this issue was discussed at length during the Department interview, the applicant claimed that he did not go to [Country 1] with his family because of the presence of the Muttahida Qaumai Movement (MQM) which [was also present there]. The applicant claimed for the first time, during the interview, that his uncle, formerly the president of [a particular business] in Karachi, was killed by the MQM four months ago and he has learned that the MQM was involved in the extortion attempts and also in the threats to kidnap his children in October 2013. He also claimed that he did not know where to go in [Country 1] and it could be a dangerous place. He further claimed that he was pressured by his family members not to go to [Country 1] because they told him what had happened to him were “everyday occurrences” and although he bought airline tickets for [Country 1], he decided to use the visas for Australia instead. He claimed that by the time the Australian visas were issued he had reached his limits of how much harassment he could tolerate.

22. When this issue was discussed during the Tribunal hearing, the applicant also claimed that the MQM is [present in Country 1]. He has been to [Country 1] three times and [another country] twice and the MQM would know he went to [Country 1]. The applicant and his family stopped going anywhere in October and stayed at home. The applicant also claimed that his parents told him not to leave Pakistan at that time. The applicant’s wife told the Tribunal, when asked why they did not leave at an earlier time, that it is very difficult to leave everything behind, their house and business and they were waiting for the circumstances to change. The applicant’s father was telling them that they should “wait it out” but nothing changed and they decided to get out of Pakistan.

23. In relation to the use of the [Country 1] visas, the representative submitted in a pre hearing submission that the applicants have instructed that they did not use [the Country 1] visas because of the presence of the MQM in [Country 1]. They applied for the [temporary] visas to Australia and when they had not been processed they worried they would not come through and applied for the [Country 1] visas. It is submitted that there was only a month, approximately, between the two visa grants, and they hoped their situation would improve and they could avoid leaving Pakistan altogether. Their families also tried to dissuade them from leaving. However, the situation did not improve and they decided to leave Pakistan for Australia. In a post hearing submission, the representative has submitted that the Tribunal suggested during the hearing that had the applicant genuinely feared for his safety that he would have departed Karachi earlier when he received his visa to [Country 1]. The representative submits that it is “understandable to view the applicant’s situation from a Western context” where under the threat of danger anything would be done to rectify the situation. It must be appreciated that the applicant has lived in an unsafe environment for a period of time and whilst the situation was “dire” it lacked the urgency that would accompany it if it had happened to someone living in Australia, who would be unaccustomed to living with violence and the threat of danger on a daily basis. It is further submitted that as claimed by the applicant he feared the presence of the MQM in [Country 1] and the family stayed for an additional month as they were trying to dissuade him from leaving and hoped the situation would improve. In these circumstances, whilst a month may seem like a substantial period for those not accustomed to life in Karachi, for the applicant and his family it was a short period that allowed them to be certain that they had no other choice but to leave Pakistan. 

24. The Tribunal has had regard to the submissions and the applicants’ explanations for their failure to use visas for [Country 1], granted some three months prior to their departure from Pakistan. The Tribunal considers that the evidence indicates an orderly and planned departure from Pakistan, and is not indicative of a family who had been subject to the harm that the applicant has claimed. The Tribunal does not accept that the applicant and his family’s decision to remain in Pakistan, in circumstances where they could have departed from the time their visas were granted in July 2013, even if it was temporarily whilst they assessed the situation, is consistent with the applicant’s claims that his son was kidnapped in April 2013; a further kidnapping was made in August 2013; his car was fired on in May 2013 on two occasions; and a serious robbery in August 2013 where the family was purportedly tied up. The Tribunal also does not accept the applicant would genuinely believe the MQM would pursue him in [Country 1] for extortion and considers that this claim was raised for the first time during the interview in an attempt to explain why he and his family did not go to [Country 1] at an earlier time, rather than remaining in Pakistan where they claimed to have been experiencing ongoing and serious harm. The Tribunal does not accept the submission that the situation was “dire” but lacked urgency. In the Tribunal’s view, had the applicant’s son been kidnapped on even one occasion requiring the applicant to pay [the large amount of] rupees, he would have made plans to leave Pakistan for [Country 1] as soon as possible, even if they did so on a temporary basis whilst determining whether the situation could improve. The Tribunal considers that their failure to utilise visas for a safe country such as [Country 1] is indicative of the fact that he and his family did not fear harm in Pakistan.  The Tribunal considers that the applicant and his wife have exhibited considerable concern for the welfare of their children and a desire for them to be educated and live in the safety of Australia. Whilst the Tribunal accepts there was only a month between the grant of the visa for Australia and their departure from Pakistan, this does not explain why the applicants had visas issued for [Country 1] in July 2013, yet they did not leave Pakistan until November 2013, some four months later, in circumstances where they have claimed kidnappings, attempted kidnappings, a home invasion and attacks by persons with weapons whilst the applicant was driving his motor vehicle. The Tribunal does not accept, having considered all of the evidence, that their actions in remaining in Pakistan for some months after visas were granted support their claims to have experienced serious threats and harm. The Tribunal considers that their evidence indicates that they had a planned and orderly departure from Pakistan and that their two elder sons were attending school until at least October 2013, which as discussed below, is not consistent with their claims regarding the kidnapping and attempted kidnappings from April 2013.

    The applicant’s claims regarding the kidnapping and attempted kidnappings

1. The Tribunal also considers that the various aspects of the applicant’s account of the kidnappings and attempted kidnappings raises further serious doubts in relation to the credibility of the applicant’s claims. These include inconsistencies in relation to when and how many attempted abductions there were of his son/sons; the applicant’s significantly evasive and vague evidence as to the kidnappings and attempted kidnappings; his altered evidence during the hearing as to the payment of a ransom. The Tribunal further considers that aspects of the applicant’s evidence regarding the kidnapping and attempted kidnapping are not credible. These are discussed below.

2. The Tribunal firstly considers that the applicant’s evidence as to his son’s kidnapping has altered since the initial application. In the initial application, the applicant referred to a “few” attempted abductions of his sons and one actual kidnapping of his eldest son. Although the applicant told the delegate during the interview that his son was kidnapped in April 2013 and there was an attempted kidnapping of his two elder sons in October 2013, he subsequently provided a document to the Tribunal indicating that there was an attempted kidnapping of his son in August 2013. However, when asked during the hearing about this document, which states that he is running [a product] business, [business name], the applicant appeared confused about this document and why it stated that his business is [that business name], but eventually stated after some discussion of the issue that it was his friend’s business and he had to use his business name. During the Tribunal hearing, the applicant was asked about the kidnapping and stated that he could not remember the day of the week, but it was a school day. The applicant was unable to remember the date it occurred, but stated that it was “maybe in the middle”. When asked why he could not remember, the applicant stated that there were incidents “happening to me every day”. When asked his son’s age at that time, the applicant stated he was seven or eight years of age. The Tribunal commented that his son was very young at that time and it would expect him to be able to recall with greater specificity the date his very young son was kidnapped.

3. When asked at the hearing for further details about the attempted abductions, the applicant stated that in October he received a telephone call and he stopped his children from going to school. When asked how they attempted to kidnap his son, the applicant stated that in August and October they kept on trying to kidnap his son. When advised that he has not previously claimed they had tried to kidnap his son in August, the applicant stated that he has provided a report for August 2013. When advised again that he has not previously claimed there was a kidnapping attempt of his son in August, the applicant stated that the most recent incident occurred in October. When reminded he was being asked about the August incident and why this claim has only recently been made, the applicant stated that in August his house was robbed. The Tribunal reminded the applicant that the document he has provided states that there was a kidnapping attempt in August. The applicant stated that when he was leaving the school a car was chasing him but after that time they went away. When asked if he could be more specific about what happened, the applicant stated that they telephoned him every day and in August but then stated that they called every six to ten days. When asked how long after the kidnapping did they begin calling, the applicant stated that in May they began calling and stopped during the holidays and then called again in August and they said “we just want the money”. The applicant was asked a number of times for more details of the telephone calls and what they had asked of him, to which the applicant had difficulty providing further details. When the Tribunal commented that he appears to have a lot of difficulty describing what had happened, the applicant stated that they called him and then they robbed his shop. The applicant went to the police after two hours. When asked what he reported to the police, the applicant stated that he told them this had happened again and they had followed him. The Tribunal advised the applicant that the document he had provided does not state that he had been followed.

4. The Tribunal considers the applicant’s evidence during the hearing that his seven or eight year old was kidnapped by persons demanding a large ransom yet he cannot recall when it happened is not credible. As discussed above, the Tribunal considers that the kidnapping of a young child even for a short period of time would be a significant event. The Tribunal has had regard to the submissions that the trauma may have affected the applicant’s ability to recall these details. The Tribunal does not accept that the applicant’s account of his son’s kidnapping was from actual experience and considers that his difficulty in providing details was not due to trauma but instead due to the fact that the kidnapping and attempted kidnappings had not occurred. The Tribunal also considers that the applicant’s evidence in relation to the attempted kidnappings of his son differs between his evidence to the delegate during the interview and to the Tribunal and that the applicant recalled that he had provided a document relating to an attempted abduction of his son in August 2013, but then had difficulty providing details of that abduction and appeared not to know the contents of the document provided to the Tribunal. The Tribunal considers that the problematic nature of the evidence in relation to this issue raises serious concerns that the applicant’s claims relating to the abduction and attempted abduction of his son has been fabricated.

5. The Tribunal also considers, as discussed during the hearing, that the applicant altered his evidence when asked how he obtained the money to pay the kidnappers, particularly when it became evident that he may have to provide evidence of a withdrawal from his bank account. During the hearing, the applicant confirmed that the persons demanded a ransom of [the large amount of] rupees. When asked where the money came from the applicant stated that he took money out of his account. However, when the Tribunal asked whether he has a record of the transaction, the applicant then stated that he had that much money in his house. When reminded he had only just said he had the money in his bank account, the applicant stated he had to arrange for the money and he took 6 lacs out of his account. He then received a telephone call telling him where to leave the money and he picked up his son who was so frightened he was vomiting at a park nearby.

6. In addition to the inconsistencies and problematic nature of the evidence discussed above, the Tribunal also considers that the applicant’s evidence as to his reaction in terms of his contact with his sons’ school and actions taken by their school was confused and inconsistent, and that he altered his evidence in relation to concerns expressed by the Tribunal. When asked during the hearing whether his children’s school contacted him when his child was taken, the applicant queried “what do you mean?” When advised that other people must have businesses and it is odd that his son was the only target of the kidnappers, the applicant stated he does not know and his shops were robbed as well. When asked if any other students were kidnapped, the applicant stated that they were not. In response to the Tribunal’s inquiries as to what the school did in response to the kidnapping of one of its students if he was the only one, the applicant stated that people have been “after him” for four or five years and he is a “famous” person as his shops are well known. When asked whether anyone at his sons’ school was interviewed about the kidnapping, the applicant stated that the school told him he should not talk about the matter because it is harmful for the reputation. When asked for further details about the attempted kidnapping in October, the applicant stated that the kidnappers called at 9.30am and he picked the children up at 1.30pm, which is the usual time that school finishes. He stated that he had been receiving telephone calls every day from the kidnappers so he would go to the school and collect his children. When asked whether he had advised the school about the kidnapping, the applicant stated that he did not telephone the school when he received the telephone call from the two kidnappers.  When asked whether the principal or teachers, the applicant stated that they increased the security. The Tribunal reminded the applicant that he had previously said that he had been told not to talk about it. The applicant stated that they increased the security because they did not want it to happen again. When asked why he would continue sending his son to school until October, even after these incidents, the applicant stated that they had increased the security. The Tribunal commented that he had previously claimed that his son was the only one who was kidnapped and he had not spoken to the school about security. The applicant stated that the first time he spoke to them they were worried about their reputation but later they increased the security and he picked up the children himself. The applicant stopped receiving the telephone calls after August and they did not talk about his son.

7. The Tribunal does not accept that the applicant’s account of the reaction by the school, the teachers and people around the school indicates that he was recounting this from personal experience. The applicant appeared not to have considered how his child’s school would have reacted in relation to his son’s kidnapping from that school and their concern for the welfare of their students. The Tribunal also considers that had the applicant’s son been the only child to have been kidnapped from the school that he would have been able to discuss in significantly greater detail the attitude of teachers, staff or other parents. The Tribunal further considers that although he initially appeared puzzled that the school would take any action or be concerned that his son had been kidnapped, and they told him not to say anything, he then altered his evidence by claiming that they increased their security. The Tribunal considers that the applicant’s evidence in relation to this issue is further indicative of the fact that these claims have been manufactured. Additionally, the Tribunal considers that the applicant’s claims that his children were too frightened to go to school are not supported by the evidence indicating that they were at school until at least October 2013, shortly before they left Pakistan for Australia. As stated above, the Tribunal considers that had the applicant and his family been the victim of the serious incidents that he claims they would have departed Pakistan at a considerably earlier time. The Tribunal considers that the fact that their children were clearly continuing to attend school and the applicant did not appear to have given any genuine consideration to discussions with the school regarding security issues is further indicative of the fact that the applicant’s claims are fabricated. As stated above, the Tribunal does not accept that the evasive nature of the applicant’s evidence in relation to these issues was due to trauma, memory problems, or Ramadan. The Tribunal instead considers it is due to the fact that he is not a truthful witness and his claims have been fabricated.  

   The applicant’s claims regarding the gunshot attack

8. The Tribunal further considers that the applicant’s claims in relation to the gunshot attack whilst he was driving to work [in] May 2013 are inconsistent. The applicant referred in his initial statement to an attack [in] May 2013, claiming that his car was “badly damaged” by bullets. When asked about this during the interview, the applicant stated that the men on a motorbike tried to encircle him and he sped up. He stated and he swerved and was able to escape and he stated during the interview that his car was “undamaged”. When the delegate reminded the applicant that he had previously claimed that his car was badly damaged by bullets, he then stated that there were too many incidents to remember and there was another incident where his car had in fact been hit by bullets. The applicant told the delegate that another person had written his claims. He does not know English and was unaware of what had been written. The applicant told the delegate that he went to the police four hours later, but the police already knew about the incident. When asked during the hearing about the inconsistency, the applicant stated that when he was interviewed he had been fasting for Ramadan and he was confused and had forgotten some aspects of his claims. The applicant also told the Tribunal that there were two incidents within two weeks of each other and during the first attack his car was fired on and damaged and during the second attack it was undamaged.

9. The Tribunal does not accept the applicant’s explanation for the inconsistency. The Tribunal considers it evident that the applicant altered his claims during the course of the interview to accommodate the inconsistencies raised by the delegate. The Tribunal does not accept the applicant was confused because of Ramadan, a claim not made during the interview, despite considerable discussion with the delegate in relation to inconsistencies in his evidence. The Tribunal considers that the applicant has manufactured his claims in relation to Ramadan in an attempt to overcome the inconsistencies in his evidence in relation to the gunshot attacks on his car. The Tribunal considers that the evidence in relation to this issue is indicative of the fact that this claim has been manufactured.

   Other claims

10. The Tribunal also considers that other aspects of his claims are inconsistent or not credible. Although the applicant had not had not previously claimed to have had any problems from the MQM, during the Department interview he told the delegate that he had found out after he came to Australia that the people responsible for the kidnappings and extortion were from the MQM. The applicant also told the Department during the interview that his uncle was shot about four months previously. When asked about this by the Tribunal, the applicant stated that his uncle was shot “a month and a half before we came” to Australia. When reminded that he had told the delegate when he was interviewed in July 2014 that it had happened four months ago, the applicant then stated that he was fasting at that time and he could not remember. He stated that there were so many questions, but he could not remember the month. He did not know until later who shot his uncle and who they belonged to.

11. As discussed during the hearing, the Tribunal considers that had his uncle been shot dead by the MQM, which he had later found was responsible for his own problems in Pakistan, that the applicant would recall with greater specificity when this occurred and whether he found out about this before or after he came to Australia, such that it was in 2013 or 2014.  The Tribunal also does not accept that the applicant told the delegate during the interview that he was fasting and had difficulty answering questions despite the fact that the delegate had raised several concerns with him about several aspects of his evidence and he had not raised this as an issue. The Tribunal does not accept that the applicant’s uncle was shot by the MQM and considers that he has attempted to manufacture evidence in relation to the MQM in an attempt to embellish his claims.  Nor does the Tribunal accept that the applicant sought the assistance of the police in relation to kidnappings or extortion or gunshots, given that the Tribunal has not accepted his claims in this regard.

    Conclusions on past harm and documents

12. The Tribunal has had regard to all of the evidence, including the documentary and oral evidence. The Tribunal has also had regard to the submissions regarding the applicant’s memory problems as well as his claims that during the interview because he was fasting for Ramadan and this affected his memory and recollection of events. The representative has submitted that although the Tribunal expressed concerns about the applicant’s inability to recall specific dates of significant events, this is not an indication of the credibility of the applicant. The representative refers to a UNHCR report, “Beyond Proof” and submits that the report concludes that an inability to remember dates is not an indication of credibility and a discrepancy between dates recalled is simply a matter for memory. It is further submitted that a further factor is the “heightened emotion” involved in the events that the applicant speaks of and his experiences may have an associated level of trauma and the UNHCR has found that high levels of emotion and trauma can affect and impair a person’s ability or memory.

13. The Tribunal has accepted, as discussed in more detail below, that there is considerable violence in Karachi and the applicant has sought to remove his family from that environment. The Tribunal does not accept that the applicant has experienced the harm or trauma that he has claimed and does not accept that his memory or ability to recall some dates was affected because of Ramadan or due to past trauma. The Tribunal instead considers that it is due to the fact that the applicant has fabricated a set of claims in an attempt to establish that he and his family have suffered serious harm in Pakistan.

14. It follows that the Tribunal does not accept that the documents that the applicant has provided are genuine and/or that they contain truthful information. As discussed with the applicant during the hearing, fraudulent documentation is readily available and easy to obtain in Pakistan.[1] The Tribunal accepts that the documents in relation to the applicant’s ownership of property is genuine, but does not accept the First Information Report relating to the robbery which was made some four months after the robbery purportedly occurred is genuine. The document, dated August 2013, is also inconsistent with aspects of the applicant’s other evidence and as discussed below, the applicant appeared confused about the nature of some of the details in the document. The Tribunal is not satisfied, having considered all of that evidence, that the applicant’s son was the victim of a kidnapping in April 2013 or that a ransom was paid for his release. Nor does the Tribunal accept that the applicant and his family were the victim of a robbery at their home where they were held and tied up. Nor does the Tribunal accept that the applicant’s car was shot at on two occasions or that there were attempted abductions or extortion attempts. Nor does the Tribunal accept that there was a robbery at the applicant’s shop in December 2013, reported in April 2014. The Tribunal has had regard to the submissions in relation to FIR’s and the difficulties inherent in the system of FIR’s, but does not accept that the evidence cited establishes that the police would not take details of a robbery until four months after the robbery occurred. The Tribunal does not accept, therefore, that the FIR or the document, dated August 2013, are genuine documents. The Tribunal is drawn to the conclusion that they have been manufactured in an attempt to establish that the applicant has been targeted in Pakistan.

    [1] See report by the Department of Foreign Affairs and Trade which states, in its advice of August 2009, that the prevalence of false documents in Pakistan is high. The Immigration and Refugee Board of Canada (IRBC) also noted in November 2010 that there is a high incidence of fraudulent documents in Pakistan. 

15. The Tribunal is drawn to the conclusion that the applicant and his wife have manufactured the totality of their claims regarding their experiences in Pakistan and they have done so in an attempt to obtain permanent visas for their family to remain in Australia. Although the Tribunal has accepted that Karachi has elements of danger and violence, the Tribunal is not satisfied that there is a real chance that they will suffer serious harm upon their return to Pakistan. These issues are discussed in further detail below.    

    Is there a real chance of serious harm upon their return to Pakistan?

1. As stated above, the applicant has claimed that he will be targeted upon his return to Pakistan and will suffer serious harm due to his membership of a particular social group of wealthy businessmen, or even simply as a result of his membership of a particular social group of businessmen. The applicant has claimed that he fears for the safety of his family if they are required to return to Pakistan. The applicant and his wife told the Tribunal that life in Karachi is like living in a “cage” and the children were very scared and could not even go to the park and life was “very horrible”. The applicant’s wife stated that it was because of their children that they left because they want to “save our children’s lives”. The children could not go to school and have been “disturbed mentally”. The applicant also stated that he has children and a wife and his family will be unable to survive if something happens to him. The children have cried when they were asked if they want to return to Pakistan. There is no protection for life in Pakistan and they do not know where to go for help, due to police corruption.

2. The Tribunal has not accepted the applicant’s claims that he or his family suffered serious harm in Karachi. The Tribunal must nevertheless consider whether there is a real chance that the applicant would suffer serious harm upon his return to Karachi. The representative has submitted that the Tribunal agreed during the hearing that the country information confirms that Karachi is a dangerous city, but it is not necessarily established that there is a real chance that the applicant will be persecuted in Karachi because he is a wealthy businessman. It is submitted that during the hearing, the Tribunal “relied on the fact” that the applicant’s father has not been targeted beyond threatening telephone calls, which might be an indication that there is no real significant harm that would befall the applicant should he and his family return. It is submitted that the lack of physical violence towards the applicant does not preclude a finding that violence will be directed at the applicants if they are forced to return. The representative refers to the evidence provided in the pre-hearing submission in relation to the ongoing turf war in Pakistan and Karachi in particular and in order to maintain power and control, the MQM engages in targeted extortion, kidnappings and killings. It is submitted that it is not “mere generalised violence” and the applicant is being targeted because he is a member of a particular social group of businessmen, and it is noted that businessmen in general are being targeted not just those who have a high profile.

3. In the post hearing submission, the representative also referred to reports by the United States Department of State Bureau of Diplomatic Security Advisory Council where they examined the crime situation in Karachi and found that crime and safety are major concerns and criminal gangs act with impunity in most parts of the city and some areas are effectively cut off from the police. It is submitted that the “violent crime continued upwards” and 2012 is characterised as one of the most deadly and violent years ever. The report also refers to the targeting of criminal and extremist groups who target local businessmen and prominent families in an attempt to extort ransoms for profit or to finance operations. The representative submits that the ransoms are often negotiated and paid by families without police notification or involvement and foreign and local employees have been targeted for kidnappings and ransoms are often paid but perpetrators are frequently not brought to justice. It is submitted that the applicant’s experiences are not isolated and the reported cases of kidnappings for ransom are at an “all time high” in 2013 and there is a real chance that the applicant will be the victim of such kidnapping if he returns to Karachi. It is further submitted that whilst it is hard to place a percentage chance on the applicant being kidnapped, it is clear that there is a “real possibility of this occurring” due to his status as a wealthy businessman.

4. The representative had submitted prior to the hearing that the statistics illustrate a decline in the security in Karachi and a number of people were killed in Karachi in the first six months of 2013. It is submitted that the “mere fact” that 1,726 individuals were killed in the first six months corroborates the applicants assertions that Karachi has become extremely unsafe, especially for individuals with a wealthy profile. It is submitted that other reports refer to criminal elements engaging in extortion and other criminal means. The representative submits that between March and June 2012 over 20 traders were killed for failing to pay extortionists and 15 were abducted to facilitate payments. It is submitted that the statistics are “clearly corroborating the applicant’s account of what he and his family have been subjected to at the hands of criminal elements/militias”. The representative also referred to a decision of the Refugee Review Tribunal (RRT) which examined the groups of people who would be at risk of extortion and found that it includes those who belong to political parties, criminal and extremist groups and wealthy business people. The representative cites from an article which states that business leaders have said that extortion has touched nearly every small business owner in Karachi. The representative cites an article quoting the former president of the Karachi Chamber of Commerce and Industry as stating that there were literally thousands cases of extortion in Karachi and local authorities ignored the problem. It is submitted that the information illustrates multiple things: firstly that Karachi’s businessmen are increasingly becoming the target of extortion demands, which are sometimes resulting in death. Secondly, that the police have become so corrupt that there is no effective protection and the situation in Karachi is not improving and continues to be a major issue from 2011 to present day and little is being done to combat the violence. It is submitted that the applicant and his family will return from a Western country after being absent for many years and they will have an increased risk profile as they will be viewed as individuals with wealth.

5. It is also submitted that the applicant on “multiple occasions” sought the assistance of the police to protect himself and his family. On each occasion his claims were dismissed resulting in no real action and he believes the police are bribed by corrupt elements. This is supported by a study by Transparency International which states that the Pakistani police are the most frequent recipients of bribes. It is submitted that the Pakistani police continue to operate with impunity and it would be a “folly” to perceive the current situation in Karachi as being “random acts of thuggery” as criminal behaviour is engaged in by groups, militias and the Pakistani government has been well aware of this yet has taken no action. It is submitted that the Pakistani government’s incompetence and inability to control the numerous armed criminal/political/religious gangs, crating chaos throughout Pakistan, demonstrates that the Pakistani state is unwilling and unable to protect the applicant and his family from significant harm.

6. The Tribunal has had regard to the above evidence, as well as the independent evidence cited by the delegate which includes a 2012 report from the Human Rights Commission of Pakistan which indicates that the MQM is involved in kidnappings for ransom, extortion and this is exacerbated by the presence of criminal gangs and that kidnappings and killings are common and the Afghan and Pakistani Taliban are consolidating their interests in Karachi. The delegate also refers to a report from the Daily Times and the United Nations Office on Drugs and Crime which have noted an increase in the figure of kidnappings with ransom in Karachi. The Tribunal has also had to the submissions and the CD rom, which the applicant states relates to “everyday happenings” regarding the crimes perpetrated in Karachi.

7. The Tribunal has not accepted that the applicant or his family members have suffered serious harm in the past and has not accepted any of his claims regarding the kidnappings, abduction or the robberies. The Tribunal has also not accepted the claim that the children were not going to school in Pakistan. The Tribunal has not accepted the attempted kidnappings of the applicant’s son from school in Karachi and is satisfied that the children will be able to continue to attend school upon their return to Karachi and is not satisfied that there is a real chance they will be kidnapped, abducted or otherwise harmed whilst doing so upon their return to Karachi.  

8. As stated above, the Tribunal has accepted that there is violence in Karachi and it is directed not only sectarian and political, but it is also directed at businesspeople who can be the targets for extortion and robbery. The applicant gave evidence that his father is continuing to receive threatening telephone calls for money, but he told them he is an old man and they can do whatever they want and he has not given them any money. The Tribunal does not accept that the applicant’s father’s age would prevent further attacks or extortion demands of the business, and does not accept he is continuing to receive extortion demands or other demands. The Tribunal considers that the applicant’s evidence indicates that he and his father have operated a successful business in Karachi and the Tribunal has not accepted he has been robbed, the subject of extortion or kidnappings as a result of the operation of a successful business. As discussed during the hearing, Karachi is a large city of some 20 million people and is the major commercial hub of Pakistan.  The Tribunal does not accept that there is a real chance that in a large city, the size of Karachi with some 20 million people and obviously numerous businesses, that there is real chance the applicant will be the subject of kidnappings or extortion demands. Although the Tribunal has not accepted that the document regarding the robbery, the Tribunal accepts that there is some chance that the applicant’s business may be the victim of opportunistic crime in the future given that his family will continue to operate the business which is a “cash” business. However, the Tribunal considers that the applicant’s own evidence indicates that his family has been able to withstand the environment in Karachi in order to continue to operate their business. The Tribunal is satisfied that the applicant will be able to continue to operate his business upon his return to Karachi and that any robberies will not be such that he will be unable to operate his business or that they establish there is a real chance that he or his family will suffer serious harm in the reasonably foreseeable future. The Tribunal has accepted that they wish to remain in Australia where it is relatively safe and secure, but does not accept any concern about their safety or that of their children establishes that they will suffer serious harm as contemplated by its definition in s.91R(2) of the Act.  

9. The Tribunal is not satisfied, having regard to all of the evidence that there is a real chance that the applicant will suffer serious harm in Karachi because he is a member of a particular social group of wealthy businessmen or a similar connotation of particular social group. Nor does the Tribunal accept that there is any evidence that he is at an “increased risk because he has lived in a Western country for some time”.

10. The delegate also considered whether the applicant would suffer serious harm because he is a Mohajir and is imputed with an anti-MQM political opinion. The Tribunal considers it evident that this issue was raised in the context of relocation, which the Tribunal considers it unnecessary to consider given the findings that there is not a real chance that the applicants will suffer serious harm in Pakistan. However, for the sake of completeness, the Tribunal has considered this issue. The Tribunal has not accepted the applicant’s claims that his uncle was killed by the MQM and also has not accepted that the applicant somehow learned after his arrival in Australia that the MQM was responsible for the kidnappings, extortion, robberies and attempted abductions. The Tribunal does not accept that there is any evidence establishing that there is a real chance that the applicant will be sought by the MQM due to his imputed political opinion. The Tribunal has also not accepted that there is a real chance that the applicant will be harmed by the MQM or targeted because he is a wealthy businessman.

11. Accordingly, the Tribunal finds that there is not a real chance that the applicants will suffer serious harm for any Convention reason in Pakistan. The Tribunal is, in particular, not satisfied that there is a real chance that the applicant and/or his family will suffer serious harm because the applicant is a member of a particular social group of wealthy businessmen/businessmen or any similar connotation of particular social group. Nor is the Tribunal satisfied that is a real chance that the applicants will suffer serious harm for any other Convention ground. The Tribunal finds, therefore, that the applicants do not have a well founded fear of persecution if they return to Pakistan now or in the reasonably foreseeable future.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, that there is a real risk that they will suffer significant harm?

12. The Tribunal has also considered the applicant’s claims having regard to the Complementary Protection provisions. In terms of the Complementary Protection provisions it has been submitted that the applicant’s family did not give in to the extortion demands and their son was kidnapped. It is submitted that this was a psychological form of torture and there is a real “chance” that they would be a risk of significant harm, including torture and cruel or inhuman treatment or punishment. The representative has referred to a decision of the RRT in relation to Colombia and submits that the same principles relating to extortion apply in relation to Pakistan.

13. The Tribunal has not accepted that applicant or his family have been the victims of violence at the hands of the MQM or any other groups or that he or his sons have been attacked or his son kidnapped or that there was an attempted kidnapping of his sons. The Tribunal also has not accepted the applicant’s claims regarding the robbery in August 2013 or the gunshots directed at him whilst he was driving. Although the Tribunal has accepted that the applicant and his family owns businesses in Pakistan and are relatively wealthy, the Tribunal has not accepted that there is a real chance they will suffer serious harm for this reason. The Tribunal has accepted and had regard to the evidence of violence, kidnappings and extortion in Karachi and Pakistan more generally, but is not satisfied that there is a real risk that the applicants will be subject to this type of violence. Although the Tribunal has accepted that the applicant’s business may be subject to opportunistic crime, the Tribunal has not accepted that this amounts to serious harm as defined. The Tribunal is also not satisfied that opportunistic crime, due to the fact that the applicant operates a successful cash business, is such that it amounts to significant harm as that term is defined in s.36(2A) of the Act. Accordingly, the Tribunal is not satisfied that there is a real risk that the applicants would suffer significant harm in Pakistan if they are removed from Australia. Therefore, having regard to the Complementary Protection provisions, the Tribunal is not satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm in Pakistan.

14. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan there is a real risk that the applicants will suffer ‘significant harm’ such that they will be arbitrarily deprived of their life, suffer the death penalty or will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. 

    CONCLUSIONS

15. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

16. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Susan Pinto
    Member

    
    

    ATTACHMENT - RELEVANT LAW

17. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

    (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

    (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.’

    Refugee criterion

18. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

19. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:

    ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

20. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    Complementary protection criterion

1. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

   Ministerial direction

2. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.